In Uncategorized on 07/06/2022 at 17:53

We’ve all been there: the note of triumph, as the decision is a paean of victory, or the grating, jarring grind of defeat as the judge eviscerates all the work one’s done. And then the brisk movement, or painful trudge, to the street, where the world is going about its business regardless.

But whichever it is, counsel, Judge Ronald L. (“Ingenuity”) Buch has a reminder for you. Pick up your trial exhibits. Appeal or no appeal, whatever you’ve given in discovery, attached as exhibits to motion papers, or introduced on the trial, make sure you pick them up, or, at the very least, have copies that you can certify as true copies of the originals.

Unfortunately, fifteen years ago, when John Edward Barrington and Deanna Barrie Barrington, T. C. Memo. 2022-68, filed 7/6/22, were copping heavy-duty pleas to fraud and tax evasion, the high-speed scanner and The Cloud were not to be found in every office. “Documents obtained by the government in pursuit of the Barringtons’ cases consisted of more than 10,000 pages, including records seized by the FBI. Their attorneys gave them copies of discovery documents.” T. C. Memo. 2022-68, at p. 3.

Of course, today every 9-year-old knows that 10,000 pages barely wets the beak of an off-the-shelf 1-terabyte hard drive. Solely by way of illustration of the foregoing, see my blogpost “The Forty Million,” 4/29/15.

But John’s and Deanna’s attempt to overturn IRS’ deficiencies founder for want of the documentation they could have had, but didn’t.

“In the time between the criminal pleas and the Commissioner’s civil examination, the FBI’s records were destroyed in the ordinary course of its operations. The FBI notified the Barringtons that they could reclaim their records and held them for some time. During that time, the Barringtons never attempted to reclaim their records, and the FBI destroyed them in late 2009. When the Commissioner commenced a civil examination in 2012, the examination function could not obtain records from CI because they were grand jury materials.  Bank records were also unavailable because of the amount of time that had elapsed since the years at issue. As a result, the Commissioner used the information and figures from the plea agreements as the basis for his deficiency determinations.” T. C. Memo. 2022-68, at pp. 5-6. (Footnote omitted, but it says the grand jury materials were destroyed by Criminal Investigation in “the normal course of operations.”)

Spoliation worth a try? Intent to preserve is an issue. And we don’t know if John and Deanna were in the slammer when they could have tried to recover the documents.

Anyway, John and Deanna have nothing wherewith to rebut most of IRS’ numbers.

Takeaway- Pick up your trial exhibits (and everything else). Scan and back up.


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